Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. RIF125229, J. Thompson Hanks, Judge.
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Christine Levingston Bergman, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
I. INTRODUCTION
Defendant Juan Jose Lopez appeals from his conviction of 18 counts of lewd and lascivious acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a); counts 1-18), and 22 counts of sexual intercourse by a person over the age of 21 with a person under the age of 16 (§ 261.5, subd. (d); counts 19-40) and great bodily injury enhancements under section 12022.8 as to counts 7 and 16 and under section 12022.7, subdivision (a) as to count 24. He contends that:
All further statutory references are to the Penal Code unless otherwise specified.
1. Causing pregnancy through nonforcible sexual intercourse did not constitute great bodily injury as a matter of law, and the great bodily injury enhancement as to count 16 must be stricken.
2. Childbirth following impregnation through nonforcible sexual intercourse did not constitute great bodily injury as a matter of law, and the great bodily injury enhancements as to counts 7 and 24 must be stricken.
3. The great bodily injury enhancement as to either count 16 or count 24 must be stricken because it was improper to charge and enter true findings for two great bodily injury enhancements based on (a) causing pregnancy and (b) the resulting childbirth arising out of the same act by defendant.
4. The five-year enhancements as to counts 7 and 16 under Penal Code section 12022.8 and his admissions as to those enhancements must be stricken because the enhancements cannot attach to any of his offenses as a matter of law.
5. The abstract of judgment must be corrected (a) to delete stayed one-year terms under section 1203.066 because the abstract of judgment does not reflect the trial court’s pronouncement of sentence and the statute does not authorize the imposition of any prison term, but merely creates a presumption precluding probation; and (b) to reflect that defendant’s pretrial sentence credits were calculated under section 2933.1, not section 4019.
6. The trial court erred by failing to deem defendant’s motion to dismiss as a motion to withdraw his pleas and admissions.
7. Defendant received ineffective assistance of counsel.
8. The aggravated term as to count 7 violated defendant’s constitutional rights to a jury trial and to due process.
9. The cumulative error doctrine requires reversal.
The People concede that the enhancements under section 12022.8 were unauthorized as a matter of law and must be stricken. The People also concede that the abstract of judgment must be amended. We find no other errors.
II. FACTS AND PROCEDURAL BACKGROUND
At the preliminary hearing, Officer Steven Welch testified that Jane Doe had told him she met defendant around her 12th birthday when defendant was 20 years old. They began a sexual relationship and had sex three times weekly. When Jane Doe became pregnant, they moved across the country and eventually ended up in Riverside County. Defendant obtained a fake birth certificate for Jane Doe to conceal her true age. In October 2002, when Jane Doe was barely 13 years old, she gave birth to a daughter while they were living in San Bernardino County. Defendant and Jane Doe continued to engage in sexual relations, and Jane Doe became pregnant with a second child. Finally, in 2005, Jane Doe contacted the police. In an interview with the police, defendant admitted to a continuous sexual relationship with Jane Doe and to fathering her two children.
Defendant was charged in an amended information with 18 counts of lewd and lascivious acts upon a child under the age of 14 (§ 288, subd. (a); counts 1-18) and 22 counts of sexual intercourse by a person over the age of 21 with a person under the age of 16 (§ 261.5, subd. (d); counts 19-40). The amended information alleged great bodily injury enhancements under section 12022.8 as to counts 7 and 16, and under section 12022.7, subdivision (a), as to count 24.
Defendant pleaded guilty to all the charged offenses and admitted the enhancement allegations. Defendant admitted that each enhancement was based on his causing the victim’s pregnancy.
The trial court sentenced defendant to the aggravated term of eight years for count 7; a consecutive term of two years (one-third the middle term) on count 1, a concurrent middle term on all remaining counts, and a five-year enhancement under section 12022.8 as to count 7, for a total prison term of 15 years. The court imposed the midterm enhancement as to count 16 under section 12022.8, to run concurrently. Although the court’s oral pronouncement of judgment does not reflect that the court imposed any sentence for the section 12022.7, subdivision (a) enhancement as to count 24, the minute order and the abstract of judgment reflect a three-year concurrent term for that enhancement.
III. DISCUSSION
A. Enhancements Under Section 12022.8
Defendant contends the five-year enhancements as to counts 7 and 16 under section 12022.8 and his admissions as to those enhancements must be stricken because the enhancements cannot attach to any of his offenses. The People concede error, and, although defendant did not object to the imposition of an enhancement under section 12022.8, the People concede that the claim is reviewable because the sentence exceeded the trial court’s jurisdiction. (See People v. Johnwell (2004) 121 Cal.App.4th 1267, 1284.)
Section 12022.8, by its terms, applies only to specified sex offenses, none of which was alleged in this case. Section 12022.8 does not apply to a violation of section 288, subdivision (a). (See People v. Superior Court (Frietag) (1988) 204 Cal.App.3d 247, 249.) We therefore accept the People’s concession of error.
We will order defendant’s admissions as to the enhancements under section 12022.8 stricken, and order the sentences imposed as to those enhancements to be vacated. The People suggest that we should order the abstract of judgment modified to impose the “stayed enhancement under section 12022.7.” However, as noted above, the trial court did not orally pronounce judgment on that enhancement, and the minute order and abstract of judgment reflect that the term for the enhancement was concurrent, not stayed. We will therefore remand the matter to the trial court for pronouncement of judgment as to the enhancement under section 12022.7, subdivision (a).
B. Two Enhancements Arising from Same Act
Because we have concluded that the section 12022.8 enhancements must be vacated, we need not address defendant’s contention that one of the great bodily injury enhancements (as to either count 16 under section 12022.8 or count 24 under section 12022.7) must be stricken because the two enhancements arose out of the same act by defendant, and it was improper to charge and enter true findings for two great bodily injury enhancements for causing pregnancy and for the resulting childbirth arising out of the same act.
C. The Victim’s Pregnancy and Childbirth Constituted Great Bodily Injury
Defendant contends that causing pregnancy through nonforcible sexual intercourse and the resulting childbirths did not constitute great bodily injury as a matter of law, and the great bodily injury enhancement as to counts 7, 16, and 24 must be stricken. As discussed above, we conclude the enhancements under section 12022.8 as to counts 7 and 16 were unauthorized by the terms of statute and therefore must be vacated. We therefore address defendant’s contention only as it applies to the enhancement under section 12022.7, subdivision (a) as to count 24.
In People v. Cross, (2006)130 P.3d 930 [41 Cal.Rptr.3d 69] review granted Mar. 1, 2006, S139791, the California Supreme Court has granted review to address the following issues: “Did the court prejudicially err in instructing the jury that the victim’s pregnancy or subsequent abortion could constitute great bodily injury within the meaning of Penal Code section 12022.7 and in failing to instruct the jury on the meaning of ‘personal infliction?’”
Section 12022.7, subdivision (a) provides for enhanced punishment when a defendant personally inflicts great bodily injury during the commission of a felony or attempted felony. The basic enhancement term under section 12022.7, subdivision (a) is three years.
Great bodily injury is defined as “a significant or substantial physical injury.” (§ 12022.7, subd. (f).) However, “Minor, trivial, or moderate injuries do not constitute great bodily injury.” (CALJIC No. 17.20.) California courts have held that a pregnancy may qualify as a greatbodily injury. In People v. Sargent (1978) 86 Cal.App.3d 148 (Sargent), the defendant forcibly raped a 17-year-old girl, who as a result became pregnant and had an abortion. This court held, “Pregnancy resulting from rape is great bodily injury.” (Id. at p. 151.) We explained that a pregnancy resulting from rape is not necessarily incidental to the rape itself and cannot be described as trivial or insignificant. And it does not involve merely psychological or emotional distress, but instead is a significant and substantial physical injury in that it involves major physical changes and bodily impairment which affect a woman’s health and well being. (Ibid.) The possible results of a pregnancy — i.e., childbirth, abortion, and miscarriage — also involve additional traumatic physical experiences. (Id. at p. 152.) Thus, we concluded there was “evidence of injury significantly and substantially beyond that necessarily present in the commission of rape.” (Ibid.) Our holding in Sargent was not based on the fact that the pregnancy resulted from a forcible act, but on the fact that pregnancy involves injuries not “necessarily incidental to an act of rape.” (Id. at p. 151.) The same is true in the present case. The victim’s pregnancies involved injuries necessarily incidental to lewd and lascivious acts upon a child under the age of 14 (§ 288, subd. (a)) and sexual intercourse by a person over the age of 21 with a person under the age of 16 (§ 261.5, subd. (d)).
In People v. Superior Court (Duval) (1988) 198 Cal.App.3d 1121, a high school vice principal was charged with various sex crimes, including statutory rape of two students, one of whom, at age 15, became pregnant and had an abortion. The trial court dismissed the allegation that the defendant intentionally inflicted great bodily injury under a former version of section 12022.7, and the People filed a petition for writ of mandate. The appellate court affirmed the trial court’s dismissal based on a lack of specific intent as required under the former statute, but agreed with the holding in Sargent, supra, 86 Cal.App.3d 148, that the pregnancy constituted a great bodily injury. (Duval, supra, 198 Cal.App.3d at pp. 1132, 1134.) The court specifically held, “Pregnancy, abortion, or venereal disease constitute injury significantly and substantially beyond that necessarily present in the commission of an act of unlawful sexual intercourse.” (Id. at p. 1131.)
The holdings of those cases are consistent with the treatment of pregnancy and childbirth as great bodily injury in the laws of other jurisdictions. For example, in the context of laws governing sexual offenses, several states have defined personal injury or bodily injury by statute to include pregnancy. (See, e.g., Mich. Comp. Laws, § 750.520a, subd. (m) [definition applicable to penal code sections governing sexual conduct]; Neb. Rev. Stats., § 28-318 [definition applicable to crimes against the person]; N.M. Stats. Ann., § 30-9-10(D) [definition applicable to sexual offenses].) Tennessee and Florida have reached the same result through case law. (See, e.g., State v. Smith (Tenn. Crim. App. 1995) 910 S.W.2d 457, 461 [holding that an unwanted pregnancy and childbirth arising from defendant’s sexual relations with a 14-year-old came within the definition of personal injury for purposes of the criminal sentencing statutes]; State v. Jones (Tenn. Crim. App. 1994) 889 S.W.2d 225, 231 [13-year-old victim’s pregnancy as a result of statutory rape was a personal injury supporting a sentence enhancement]; Fenelon v. State (Fla. App. 1993) 629 So.2d 955, 956 [pregnancy and childbirth resulting from sexual battery were “physical trauma” and “victim injury” within the meaning of the criminal sentencing guidelines].)
Federal courts have also reached the same conclusion. In U.S. v. Asberry (9th Cir. 2005)394 F.3d 712, 717, the court explained, “Sexual intercourse with adults poses serious potential risks of physical injury to adolescents of ages fifteen and younger. Both sexually transmitted disease and the physical risks of pregnancy among adolescent females are ‘injuries’ as the term is defined in common and legal usage. See Oxford English Dictionary (2d ed. 1989) (‘Hurt or loss caused to or sustained by a person or thing; harm, detriment, damage.’); Black’s Law Dictionary (6th ed.1990) (defining ‘bodily injury’ as ‘[p]hysical pain, illness or any impairment of physical condition’ and ‘injury to the body . . . including . . . injury resulting from rape or attempted rape’); [citations.].” (See also U.S. v. Guy (8th Cir. 2003) 340 F.3d 655, 658-659 [upholding the finding that the 14-year-old victim of aggravated sexual abuse suffered serious bodily injury from rape and the resulting pregnancy and childbirth]; U.S. v. Shannon (7th Cir. 1997) 110 F.3d 382, 388-389 (Shannon).).
We find the Shannon court’s discussion of the reasons for its holding highly persuasive: “The medical complications of pregnancy are plainly a form of physical injury. What about the pregnancy itself? Pregnancy resulting from rape is routinely considered a form of grave bodily injury. [Citations.] Apart from the nontrivial discomfort of being pregnant (morning sickness, fatigue, edema, back pain, weight gain, etc.), giving birth is intensely painful; and when the pregnancy is involuntary and undesired, the discomfort and pain have no redemptive features and so stand forth as a form of genuine and serious physical injury, just as in the case of an undesired surgical procedure (a pertinent example being involuntary sterilization). Most surgical procedures cause discomfort and pain; we bear these by-products to cure or avert a greater injury or illness; when there is no greater injury or illness to avert, the by-products become pure injury. No one doubts that a person who is operated on by mistake can recover damages for the pain and suffering inflicted by the operation, which he could not do if he had consented to it. [¶] To the extent that a 13 year old is incapable of appreciating the full risk and consequences of sexual intercourse, her ensuing pregnancy and parturition (or abortion) must be considered at least quasi-involuntary and could well be considered, therefore, a physical injury even if the pregnancy is normal. And sex with a 13 year old creates a significant risk of pregnancy. . . . The pregnancy of a 13 year old is arguably a physical injury in itself and clearly creates a substantial risk of secondary physical injury to mother or fetus from complications of the pregnancy . . . and the guideline does not grade physical injury by gravity.” (Shannon, supra, 110 F.3d at p. 388.) We adopt this reasoning and conclude that, on the record before us, the victim’s pregnancy and childbirth constituted great bodily injury within the meaning of section 12022.7, subdivision (a).
D. Abstract of Judgment
Defendant contends the abstract of judgment must be corrected to delete stayed one-year terms under section 1203.066, both because the trial court did not pronounce any such sentence, and the statute does not authorize the imposition of any prison term but merely creates a presumption precluding probation. The People concede error. We agree that even if the trial court had imposed and stayed one-year terms under section 1203.066, that sentence would have been unauthorized. We will order the abstract of judgment amended accordingly.
2. Presentence Credits
At the sentencing hearing, the trial court computed defendant’s presentence credit under section 2933.1 ; however, the minute order and abstract of judgment reflect that credit was computed under section 4019. Defendant contends the abstract of judgment must be corrected to reflect the proper statutory basis for the credits, and the People concede error. We will order the abstract of judgment amended accordingly.
The trial court actually referred to section 2933. The parties agree the applicable statute is section 2933.1.
E. Defendant’s Motion to Dismiss
Defendant contends the trial court erred by failing to deem defendant’s motion to dismiss as a motion to withdraw his pleas and admissions. He also argues that the trial court abused its discretion in treating the motion as untimely because in cases involving a plea, a motion to dismiss in the furtherance of justice is timely even after entry of the plea.
1. Background
Defense counsel told the trial court that defendant wanted to plead guilty to the charges. The trial court advised defendant of the potential minimum (13 years) and maximum (77 years) sentence he would face as a result of his guilty plea and admission of the enhancements. Defendant told the court he understood the possible sentence. The trial court elicited defendant’s statements that no one had promised him anything or threatened him with anything as a result of entering his plea. The trial court obtained defendant’s confirmation that he had read and understood the plea form and had understood the rights he was waiving. The trial court made a finding that defendant’s plea was knowing, intelligent and voluntary.
A month after he pleaded guilty, defendant filed a motion to dismiss under section 995 and common law. The motion also cited section 1385, and the relief sought in the motion was dismissal of all charges. Another month later, defendant filed an amended motion on essentially the same bases. In the motion, defendant argued that impregnation is not great bodily injury, and the proper charge was a single violation of section 288.5; in other words, that he should have been prosecuted under section 288.5 for continuous sexual abuse of a child because that statute was more specific than section 288, subdivision (a). The trial court denied the motion as untimely.
Defendant did not contend in the motion that the enhancements under section 12022.8 could not, as a matter of law, attach to the crimes with which defendant was charged, and even if he had so argued, the proper remedy would have been to strike those enhancements, not to allow defendant to invalidate his plea.
2. Standard of Review
The trial court exercises its discretion in ruling on a motion to withdraw a guilty plea, and we do not disturb the trial court’s exercise of its discretion unless an abuse of discretion is clearly shown. (People v. Wharton (1991) 53 Cal.3d 522, 585.)
3. Analysis
Under section 1018, the trial court may, on a showing of good cause, allow a defendant to withdraw a plea of guilty. The defendant has the burden of establishing good cause by clear and convincing evidence. (People v. Wharton, supra, 53 Cal.3d at p. 585.) “‘Good cause’” means mistake, ignorance, fraud, duress, or another factor that overcomes the exercise of free will. (People v. Ravaux (2006) 142 Cal.App.4th 914, 917.)
The basis for defendant’s motion was “the legal and factual issue casting doubt on whether the great bodily injury enhancements were supportable in fact and law.” As we concluded above, the great bodily injury enhancement under section 12022.7, subdivision (a) was appropriate as applied to defendant’s case. Thus, even if the trial court had treated the motion as a motion to withdraw the plea, the trial court would have denied the motion because defendant failed to establish legitimate grounds for withdrawing his plea.
F. Assistance of Counsel
Defendant contends he received ineffective assistance of counsel because his trial counsel (1) allowed him to plead guilty with no bargained benefit; (2) allowed him to admit great bodily injury enhancements when the law was unsettled; and (3) filed an inappropriate motion to dismiss instead of a motion to withdraw the guilty pleas.
1. Standard of Review
A defendant who seeks to overturn a criminal conviction on the ground of ineffective assistance of counsel must establish both that (1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) there was a reasonable probability that the result of the proceeding would have been different if counsel had not committed unprofessional errors. (Strickland v. Washington (1984) 466 U.S. 668, 688; People v. Cox (1991) 53 Cal.3d 618, 656.) When the defendant has entered a guilty plea, he must show that there was a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. (Hill v. Lockhart (1985) 474 U.S. 52, 59; In re Alvernaz (1992) 2 Cal.4th 924, 934.)
2. Analysis
a. Allowing defendant to “plead to the sheet”
Defendant contends trial counsel provided ineffective assistance in allowing him to “plead to the sheet” without obtaining any lid or sentence or other benefit. However, the decision to plead guilty is ultimately made by the defendant, not by his attorney. (See In re Alvernaz, supra, 2 Cal.4th at p. 933; People v. Teron (1979) 23 Cal.3d 103, 115 [stating that a defendant “has the right to plead guilty, even against the advice of counsel”].)
Here, trial court determined that defendant understood the charges to which he was pleading and the minimum and maximum sentences. Defendant stated he did not wish to talk to his lawyer anymore before entering the plea. Moreover, defendant had admitted his guilt of the offenses in an interview with the police prior to his arrest. On the basis of the record before us, defendant could well have exercised his right to plead guilty over the advice of his counsel to do otherwise, for instance, because he simply wished to avoid subjecting the victim to testifying at trial. Defendant has failed to show that his trial counsel provided ineffective assistance. (People v. Cox, supra, 53 Cal.3d at p. 656.)
b. Admission of great bodily injury enhancements
Defendant contends his trial counsel provided ineffective assistance in allowing him to admit great bodily injury enhancements when the law was unsettled as to whether impregnation and ensuing childbirth may constitute great bodily injury. As discussed above, the ultimate decision whether to enter a plea or admit enhancement allegations rests with the defendant, not his counsel. (See In re Alvernaz, supra, 2 Cal.4th at p. 933.) Moreover, we have determined that the enhancements under section 12022.8 must be stricken, and defendant therefore has suffered no ultimate prejudice as a result of admitting those enhancements. Finally, as discussed above, the enhancement under section 12022.7 was appropriate as applied to the facts of this case. We therefore conclude defendant has failed to show that he suffered prejudice as a result of any action or inaction on the part of his trial counsel. (People v. Cox, supra, 53 Cal.3d at p. 656.)
c. Filing motion to dismiss instead of motion to withdraw plea
Defendant contends his trial counsel provided ineffective assistance by filing a motion to dismiss instead of a motion to withdraw his plea. However, as discussed above, even if the motion had been denominated a motion to withdraw the guilty plea, the trial court would have denied the motion because no legitimate grounds were shown for withdrawing the plea. Thus, defendant has failed to establish that he was prejudiced by counsel’s action. (People v. Cox, supra, 53 Cal.3d at p. 656.)
G. Imposition of Aggravated Term as to Count 7
Defendant contends the imposition of the aggravated term as to count 7 violated his constitutional rights to a jury trial and to due process under Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), and Blakely v. Washington (2004) 542 U.S. 296).
1. Background
At sentencing, the trial court stated that it found as factors in aggravation that the crime involved “great bodily harm, a high degree of cruelty” and “the manner in which it was carried out indicates planning.” The trial court also found that defendant’s lack of a prior record was a factor in mitigation, but that the factors in aggravation outweighed the single factor in mitigation.
2. Analysis
The California Supreme Court has recently held that the imposition of an aggravated term sentence does not violate a defendant’s Sixth Amendment right to a jury trial under Cunningham if a single aggravating factor has been established by the jury’s verdicts, the defendant’s admissions, or the defendant’s prior convictions. (People v. Black (July 19, 2007, S126182) __Cal.4th __ [2007 Cal. LEXIS 7604, p. *3].) Here, defendant admitted that his crimes involved great bodily injury. Thus, there was no Sixth Amendment error in the imposition of the aggravated term because an aggravating factor was properly established by the defendant’s admission.
H. Cumulative Error Doctrine.
Defendant contends the cumulative error doctrine requires reversal. (People v. Harrison (2005) 35 Cal.4th 208, 255.) In our review, we have found error only in imposing unauthorized enhancements under section 12022.8. A single error does not bring into play the cumulative error doctrine.
IV. DISPOSITION
Defendant’s admissions to the great bodily injury enhancements under section 12022.8 as to counts 7 and 16 are ordered stricken and the five-year enhancements imposed under that section must be vacated. The abstract of judgment must be amended to delete the one-year concurrent sentences under section 1203.066 and to reflect that the trial court calculated defendant’s presentence credits under section 2933.1 rather than section 4019. The matter is remanded for the trial court to pronounce judgment as to the enhancement under section 12022.7 as to count 24. In all other respects, the judgment is affirmed.
We concur: RAMIREZ, P. J.,